To provide for the protection of employees providing air safety information.

IN THE SENATE OF THE UNITED STATES

March 17, 1999

Mr. KERRY (for himself and Mr. GRASSLEY) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

A BILL

To provide for the protection of employees providing air safety information.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Aviation Safety Protection Act’.

SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR SAFETY INFORMATION.

(a) IN GENERAL- Chapter 421 of title 49, United States Code, is amended by adding at the end the following:

‘SUBCHAPTER III--WHISTLEBLOWER PROTECTION PROGRAM

‘Sec. 42121. Protection of employees providing air safety information

‘(a) DISCRIMINATION AGAINST AIRLINE EMPLOYEES- No air carrier or contractor or subcontractor of an air carrier may discharge an employee of the air carrier or the contractor or subcontractor of an air carrier or otherwise discriminate against any such employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)--

‘(1) provided, caused to be provided, or is about to provide or cause to be provided, to the Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;

‘(2) has filed, caused to be filed, or is about to file or cause to be filed, a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States;

‘(3) testified or will testify in such a proceeding; or

‘(4) assisted or participated or is about to assist or participate in such a proceeding.

‘(b) DEPARTMENT OF LABOR COMPLAINT PROCEDURE-

‘(1) FILING AND NOTIFICATION-

‘(A) IN GENERAL- In accordance with this paragraph, a person may file (or have a person file on behalf of that person) a complaint with the Secretary of Labor if that person believes that an air carrier or contractor or subcontractor of an air carrier discharged or otherwise discriminated against that person in violation of subsection (a).

‘(B) REQUIREMENTS FOR FILING COMPLAINTS- A complaint referred to in subparagraph (A) may be filed not later than 90 days after an alleged violation occurs. The complaint shall state the alleged violation.

‘(C) NOTIFICATION- Upon receipt of a complaint submitted under subparagraph (A), the Secretary of Labor shall notify the air carrier, contractor, or subcontractor named in the complaint and the Administrator of the Federal Aviation Administration of the--

‘(i) filing of the complaint;

‘(ii) allegations contained in the complaint;

‘(iii) substance of evidence supporting the complaint; and

‘(iv) opportunities that are afforded to the air carrier, contractor, or subcontractor under paragraph (2).

‘(2) INVESTIGATION; PRELIMINARY ORDER-

‘(A) IN GENERAL-

‘(i) INVESTIGATION- Not later than 60 days after receipt of a complaint filed under paragraph (1) and after affording the person named in the complaint an opportunity to submit to the Secretary of Labor a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses, the Secretary of Labor shall conduct an investigation and determine whether there is reasonable cause to believe that the complaint has

merit and notify in writing the complainant and the person alleged to have committed a violation of subsection (a) of the Secretary’s findings.

‘(ii) ORDER- Except as provided in subparagraph (B), if the Secretary of Labor concludes that there is reasonable cause to believe that a violation of subsection (a) has occurred, the Secretary shall accompany the findings referred to in clause (i) with a preliminary order providing the relief prescribed under paragraph (3)(B).

‘(iii) OBJECTIONS- Not later than 30 days after the date of notification of findings under this paragraph, the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order and request a hearing on the record.

‘(iv) EFFECT OF FILING- The filing of objections under clause (iii) shall not operate to stay any reinstatement remedy contained in the preliminary order.

‘(v) HEARINGS- Hearings conducted pursuant to a request made under clause (iii) shall be conducted expeditiously and governed by the Federal Rules of Civil Procedure. If a hearing is not requested during the 30-day period prescribed in clause (iii), the preliminary order shall be deemed a final order that is not subject to judicial review.

‘(B) REQUIREMENTS-

‘(i) REQUIRED SHOWING BY COMPLAINANT- The Secretary of Labor shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise required under subparagraph (A) unless the complainant makes a prima facie showing that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint.

‘(ii) SHOWING BY EMPLOYER- Notwithstanding a finding by the Secretary that the complainant has made the showing required under clause (i), no investigation otherwise required under subparagraph (A) shall be conducted if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.

‘(iii) CRITERIA FOR DETERMINATION BY SECRETARY- The Secretary may determine that a violation of subsection (a) has occurred only if the complainant demonstrates that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint.

‘(iv) PROHIBITION- Relief may not be ordered under subparagraph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.

‘(3) FINAL ORDER-

‘(A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREEMENTS-

‘(i) IN GENERAL- Not later than 120 days after conclusion of a hearing under paragraph (2), the Secretary of Labor shall issue a final order that--

‘(I) provides relief in accordance with this paragraph; or

‘(II) denies the complaint.

‘(ii) SETTLEMENT AGREEMENT- At any time before issuance of a final order under this paragraph, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary of Labor, the complainant, and the air carrier, contractor, or subcontractor alleged to have committed the violation.

‘(B) REMEDY- If, in response to a complaint filed under paragraph (1), the Secretary of Labor determines that a violation of subsection (a) has occurred, the Secretary of Labor shall order the air carrier, contractor, or subcontractor that the Secretary of Labor determines to have committed the violation to--

‘(i) take action to abate the violation;

‘(ii) reinstate the complainant to the former position of the complainant and ensure the payment of compensation (including back pay) and the restoration of terms, conditions, and privileges associated with the employment; and

‘(iii) provide compensatory damages to the complainant.

‘(C) COSTS OF COMPLAINT- If the Secretary of Labor issues a final order that provides for relief in accordance with this paragraph, the Secretary of Labor, at the request of the complainant, shall assess against the air carrier, contractor, or subcontractor named in the order an amount equal to the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred by the complainant (as determined by the Secretary of Labor) for, or in connection with, the bringing of the complaint that resulted in the issuance of the order.

‘(4) FRIVOLOUS COMPLAINTS- A complaint brought under this section that is found to be frivolous or to have been brought in bad faith shall be governed by Rule 11 of the Federal Rules of Civil Procedure.

‘(5) REVIEW-

‘(A) APPEAL TO COURT OF APPEALS-

‘(i) IN GENERAL- Not later than 60 days after a final order is issued under paragraph (3), a person adversely affected or aggrieved by that order may obtain review of the order in the United States court of appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of that violation.

‘(ii) REQUIREMENTS FOR JUDICIAL REVIEW- A review conducted under this paragraph shall be conducted in accordance with chapter 7 of title 5. The commencement of proceedings under this subparagraph shall not, unless ordered by the court, operate as a stay of the order that is the subject of the review.

‘(B) LIMITATION ON COLLATERAL ATTACK- An order referred to in subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding.

‘(6) ENFORCEMENT OF ORDER BY SECRETARY OF LABOR-

‘(A) IN GENERAL- If an air carrier, contractor, or subcontractor named in an order issued under paragraph (3) fails to comply with the order, the Secretary of Labor may file a civil action in the United States district court for the district in which the violation occurred to enforce that order.

‘(B) RELIEF- In any action brought under this paragraph, the district court shall have jurisdiction to grant any appropriate form of relief, including injunctive relief and compensatory damages.

‘(7) ENFORCEMENT OF ORDER BY PARTIES-

‘(A) COMMENCEMENT OF ACTION- A person on whose behalf an order is issued under paragraph (3) may commence a civil action against the air carrier, contractor, or subcontractor named in the order to require compliance with the order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the order.

‘(B) ATTORNEY FEES- In issuing any final order under this paragraph, the court may award costs of litigation (including reasonable attorney and expert witness fees) to any party if the court determines that the awarding of those costs is appropriate.

‘(c) MANDAMUS- Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28.

‘(d) NONAPPLICABILITY TO DELIBERATE VIOLATIONS- Subsection (a) shall not apply with respect to an employee of an air carrier, or contractor or subcontractor of an air carrier who, acting without direction from the air carrier (or an agent, contractor, or subcontractor of the air carrier), deliberately causes a violation of any requirement relating to air carrier safety under this subtitle or any other law of the United States.

‘(e) CONTRACTOR DEFINED- In this section, the term ‘contractor’ means a company that performs safety-sensitive functions by contract for an air carrier.’.

(b) CONFORMING AMENDMENT- The analysis for chapter 421 of title 49, United States Code, is amended by adding at the end the following:

‘SUBCHAPTER III--WHISTLEBLOWER PROTECTION PROGRAM

‘42121. Protection of employees providing air safety information.

(c) CIVIL PENALTY- Section 46301(a)(1)(A) of title 49, United States Code, is amended by striking ‘subchapter II of chapter 421,’ and inserting ‘subchapter II or III of chapter 421,’.